Voting in Plain Sight

Of all the domestic policy differences between the Bush and Obama administrations, just about the sharpest and most telling may be their opposite responses to the drive by Republican-dominated states to require voters to present photo identification at the polls. The Bush administration thought photo ID was a dandy idea. The Obama administration recognizes it for what it is: a cynical effort to insure that fewer young people and members of minority groups (read, likely Democratic voters) are able to cast a ballot.

Progressives who are frustrated by President Obama’s failure to close the prison at Guantánamo, or who are seething over the administration’s surrender to the religious right on the question of emergency contraception for teen-aged girls, have something to cheer in the resurrection of the Justice Department’s previously moribund Civil Rights Division. The decision late last month by Thomas E. Perez, the division’s head, to block South Carolina’s new voter identification law is important both symbolically and practically. It has been underestimated so far in both dimensions.
A bit of historical context: In 2008, the Bush administration joined the state of Indiana in the Supreme Court in a successful defense of that state’s voter ID law, the country’s first. At the leading edge of what has since become a national movement, Indiana enacted its law in 2005 with the support of every Republican in the state Legislature; no Democrat voted for it. While rejecting the challenge to the statute, the Supreme Court was nonetheless constrained to note that while the law was aimed preventing “in-person voter impersonation at polling places,” the record of the case “contains no evidence of any such fraud actually occurring in Indiana at any time in its history.” Ineligible voters just don’t seem to be flocking to the polls claiming to be someone else.

(Unfortunately for the plaintiffs in the Indiana case, the record also failed to identify any particular individual on whom the new law had placed a burden – not surprisingly because, seeking to block enforcement, the lawsuit challenged the statute “on its face,” before it took effect. To the Bush administration, this was the lawsuit’s fatal flaw; the plaintiffs “have utterly failed to show that the Voter ID law has had a discriminatory impact on any segment of society,” Paul D. Clement, then the solicitor general, told the justices in his brief.)

Fast forward to December 23, 2011, when Assistant Attorney General Perez invoked the Voting Rights Act to block South Carolina’s new voter ID law from taking effect. As a state with a history of obstructing efforts by its black citizens to exercise their right to vote, South Carolina is covered by the Voting Rights Act’s Section 5, which requires the state to receive the approval of the Justice Department or the Federal District Court in Washington, D.C. before making a change to any voting procedure. For a “covered” jurisdiction to receive the necessary “preclearance” under Section 5, it has to show that its proposed change has neither the purpose nor the likely effect of denying or abridging the right to vote on account of race or language ability.

South Carolina had not met its burden of proof, Mr. Perez told the state, adding pointedly that “the state’s submission did not include any evidence or instance of either in-person voter impersonation or any other type of fraud” that justified the change. As is typical, South Carolina’s new law requires either a driver’s license or a non-driver photo ID card issued by the Department of Motor Vehicles. Mr. Perez’s letter asserted that minority voters in the state were nearly 20 percent more likely than white voters to lack these forms of identification – a “significant racial disparity” that the state “has failed entirely to address.” The state’s own statistics, he said, showed that “there are 81,938 minority citizens who are already registered to vote and who lack DMV-issued identification,” and who thus risk being “effectively disenfranchised” by the new law.

South Carolina’s governor, Nikki Haley, called the Justice Department action a “terrible, clearly political decision” and vowed to fight it, presumably in court. One election law expert, Richard L. Hasen of the University of California Law School at Irvine, predicted that a South Carolina appeal could produce the next major challenge to the constitutionality of Section 5. Three years ago, in a case brought by a Texas sewer district, the Supreme Court appeared on the verge of declaring Section 5 to be an unconstitutional intrusion by Congress on state sovereignty. One or more of the conservative justices blinked then, but their concerns have hardly been allayed, as was evident in a Supreme Court argument on Monday in a complicated redistricting case from Texas.

A photo ID-based challenge to Section 5, if one did make its way onto the court’s docket, would mark an odd convergence. The court is due this term to decide the constitutionality of Arizona’s anti-immigrant law, SB 1070. The architect of that law, and a growing number of other laws around the country designed to make life untenable for undocumented immigrants, is a former law professor and the current Kansas secretary of state, Kris W. Kobach.

Mr. Kobach, who describes himself on his web site as “the intellectual architect of the fight against illegal immigration,” is also the leader of the photo ID campaign. One of his arguments is that photo ID is necessary to prevent illegal immigrants from voting (“My office already has found 67 aliens illegally registered to vote in Kansas,” he declared in a Wall Street Journal op-ed last spring.) The notion that undocumented immigrants are showing up at the polls to cast illegal votes is laughably implausible, so terrified is this population of emerging from the shadows even for the necessities of life. A friend in Tucson told me recently about her neighbor, an undocumented woman who no longer drives to pick up her children from soccer practice because she is so afraid of committing a traffic violation that could send her into deportation. Neighbors have pitched in to help her.

In any event, photo ID is not about illegal immigrants. It’s about people with a clear right to vote, one they have perhaps exercised for many years. The federal government has never suggested that photo ID is desirable. Under the Help America Vote Act of 2002 (HAVA), a bank check, paycheck, or the last four digits of a Social Security number can suffice under various circumstances. The new brand of state laws requires an unexpired driver’s license, passport, military photo ID, or a state-issued non-driver photo ID. The South Carolina law also provides that a voter registration card with a photograph is acceptable, but the state does not actually issue such a card.

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While no photo ID requirements existed before Indiana’s, bills were introduced last year to require them in 34 states, according to New York University Law School’s Brennan Center for Justice, which tracks the issue comprehensively. The bills were signed into law in seven states, including South Carolina and Kansas. The others were Alabama, Rhode Island, Tennessee, Texas and Wisconsin. (Alabama and Texas also require preclearance under the Voting Rights Act.) Governors vetoed bills in Minnesota, Missouri, Montana, New Hampshire, and North Carolina.

Mississippi adopted its photo ID law by voter referendum in November as an amendment to the state Constitution. The disparity in the black and white vote in Mississippi shows how polarizing this issue has become, as well as how thoroughly African American voters understand what game is afoot. While 83 percent of white Mississippians voted for the amendment, it got the support of fewer than one-quarter of the black voters.

This is such a busy election season, both at the polls and in court, that it will be easy to lose sight of the photo ID issue, a problematic solution to a non-problem. The administration’s intervention in South Carolina is most likely not the end of the matter. But it’s a necessary beginning and a refreshing change.

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Linda Greenhouse, the winner of the 1998 Pulitzer Prize, writes on alternate Thursdays about the Supreme Court and the law. She reported on the Supreme Court for The New York Times from 1978 to 2008. She teaches at Yale Law School and is the author most recently of the book “The U.S. Supreme Court: A Very Short Introduction,” as well as a biography of Justice Harry A. Blackmun, “Becoming Justice Blackmun.” She is also the co-author, with Reva B. Siegel, of “Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling.”